Federal Shield Law in the Senate Currently, 40 states and the District of Columbia have shield laws. Shield laws are important because they safeguard the public's right to know by protecting the rights of...

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Yesterday New Jersey Superior Court Judge David Ironson refused to dismiss an indictment charging a woman with identity theft for allegedly adversely impersonating her ex-boyfriend on Facebook. Dana Thornton, 41, faces up to 18 months in prison if convicted of using Facebook to impersonate Michael Lasalandra, her ex-boyfriend who is a Parsippany narcotics detective. While Thornton’s attorney, Richard Roberts maintains that New Jersey’s identity theft should not apply because the law does not include “electronic communications,” it is unclear whether Thornton will appeal.

According to the New Jersey statute, a defendant is guilty of identity theft if she “impersonates another or assumes a false identity and does an act in such assumed character or false identity for the purpose of obtaining a benefit for himself or another or to injure or defraud another.” This law does not specify its pertinence to electronic communications, nor does it specify its pertinence to any other form of communication. Historically, this statute was used to convict people who impersonate another for financial gain. However, if the allegations against Thornton are true, it is clear that she assumed her ex-boyfriend’s identity for the purpose of injuring his reputation as a police officer. According to Ben Horowitz’s article, Judge Rules Case of Belleville Woman’s Fake Facebook Page Can Proceed, Thornton, while impersonating Detective Lasalandra on Facebook, “admitted using drugs, going to prostitutes and having herpes.” Furthermore, Judge Ironson affirmed that Thornton’s statements were harmful to his “professional reputation.” A pre-trial conference is scheduled for December 7.

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On the heals of the London riots which were exacerbated by Facebook, Twitter, and Blackberry Messaging users, the New York Police Department (NYPD) announced the establishment of a “Social Media Unit.” According to New York’s Daily News, the new unit will “track troublemakers who announce plans or brag about their crimes on Twitter, MySpace and Facebook.” Thus, the new unit will not only use social media to track down evidence and perpetrators of crimes, but it will also seek out and monitor social media in an effort to prevent potential crimes.

Assistant Commissioner Kevin O’Connor, a 23-year veteran known for his success in online sex crime policing, will manage the unit under the Community Affairs Bureau, which will also educate officers about social media and organize community outreach programs. The goal is to maximize the unprecedented access to information social media provides. This, however, is not the first time that police have used social media to solve crimes. The New York’s Daily News’s article, NYPD’s Social Media Unit Will Track Criminals On Facebook, Twitter details 3 instances where the NYPD’s use of social media has helped solve crimes:

In March, 18 year old Anthony Collao, was fatally beaten in an anti-gay attack at a house party advertised on Facebook. Calvin Pietri, one of six arrested, bragged about the murder on Facebook.

Also in March, an argument over a $20 loan started on Facebook and ended when 18 year old Kayla Henriques, allegedly stabbed 22 year old Kamisha Richards to death.

In May, a junior high reunion drew hundreds of unexpected guests when the invitation went viral. During the night gunfire broke out; five people were wounded and 20 year old Dane Freeman died.

Then, in June, an overcrowded house party advertised on Facebook as “Freaky Friday” ended in a shooting that left a 20 year old Donzell Rogers dead.

It is evident that police departments throughout the country are using social media as a tool to both prevent and solve crimes. It is likely that many states will follow NYPD’s lead and institute their own “Social Media Units.”

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Social media has become a tool for people to meet, reconnect and/or communicate with significant others, relatives, business associates and friends. Many don’t know that debt collectors are also taking advantage of social networking sites like Facebook, Twitter and LinkedIn to locate debtors. In his article, Debt Collectors Faulted for Using Facebook, Mike Nixon writes, “For businesses attempting to locate people who may have skipped out on a loan or accumulated bad debt, the idea of using the World Wide Web seems both expedient and cost effective, especially when it comes to individuals who make their presence known on social media websites.” However, debt collectors that use social media to locate debtors must comply with the Fair Debt Collection Practices Act (FDCPA) and state laws or be held accountable.

Unfortunately, some debt collectors have gone too far, using social media sites like Facebook in ways that clearly violate FDCPA. For example, Ben Popken’s article, Debt Collectors Using Cute Chicks on Facebook As Bait, details CBV Collections’ practice of employing young attractive women to friend debtors in an attempt to collect. One woman friended over 600 debtors on Facebook before posting “haha you guys i tricked you all my name is actually Emily and i work for cbv collections as a skip tracer i bet you guys got calls from them saying you owe money thats all my doing you want to call and bitch? i dare you to call me 604-[redacted]!!! I wait to hear from you ”

Recently in Florida, Melanie Beacham sued debt collection agency MarkOne Financial LLC alleging they violated the FDCPA when they contacted her and her family members on Facebook to recover a $362 car loan, even though they already had her contact information. Under the FDCPA, debt collectors may only contact other people to find out the debtor’s contact information, which MarkOne already had. In fact they had been calling Beacham up to 10 times a day. In that case, Judge W. Douglas Baird ordered MarkOne not to contact Melanie Beacham’s family or friends on Facebook or other social media sites.

According to Alexis Madrigal’s article, Facebook Warns Debt Collectors About Using Its Service, Facebook does not appreciate debt collectors using its site in this way. In a statement to Madrigal, Facebook said, “There are state and federal laws and FTC regulations that govern the actions of debt collectors. The collector in the [Beacham] case likely violates a number of these laws and regulations and we encourage the victim to contact the FTC and her state Attorney General. In addition, Facebook policies prohibit any kind of threatening, intimidating, or hateful contact from one user to another. We encourage people to report such behavior to us, only accept friend requests from people that they know, and use privacy settings and our blocking feature to prevent unwanted contact.” Nevertheless, there is very little Facebook can do to prevent debt collector from using its site as a standard debt collecting tool.

Although Mike Nixon wrote that contacting debtors via social media violates the 1978 Fair Debt Collection Practices, the Federal Trade Commission (FTC) and the American Credit and Collections Association (ACA) disagree. However, in order to use these resources, collectors must still comply with the FDCPA and state regulations. In her article, Debt Collectors’ Newest Weapon: Facebook, Kate Rogers lists 5 limitations that collectors must abide by. (1) Creditors can never contact a debtor under false pretenses or conceal their true identity. Creditors must disclose who they are and that they are attempting to collect debt. (2) While creditors can contact third parties to locate a debtor, they cannot disclose that they are trying to collect a debt. Once the debtor is located, third party contact must stop. Besides that, creditors are only allowed to contact the debtor, the debtor’s attorney, the debtor’s spouse and any co-signers. (3) Creditors are to provide debtors with notice of the debt (i.e. who is owed; the amount owed, and the owed party’s contact information) in writing. (4) Creditors can not contact debtors at work if a debtor asks them not to. (5) Debtors have the right to ask creditors to stop contacting them. However, this forces the collector to bring suit to collect the debt. Thus, while creditors can use social media to locate and contact debtors, creditors may not publicly identify themselves as debt collectors, and they may not disclose that they are attempting to collect a debt. Nor can they make false or misleading representations in an effort to collect a debt.

Regulations, as usual, are slow to catch up with technology. In her article, Debt Collectors and Generation Facebook, Anita Tolani writes, “A debt collection agency must comply with federal and state regulations that are archaic to this Facebook generation.” In response to this growing concern, the FTC is holding a free workshop on April 28 entitled Debt Collection 2.0: Protecting Consumers as Technologies Change where consumer advocates, government officials, and other authorities will explore the impact of technological advances on consumer debt collection. The workshop which takes place in Washington DC is open to the public and will also be webcast.

If you owe money remember that any information you post online can be used by creditors to collect the debt, however you do have rights. Debt collectors cannot harass consumers and must comply with the FDCPA and state laws or be held accountable for their actions. For general questions consult AskDoctorDebt.com (available in English and Spanish) which was created by the ACA Professionals Education Foundation to provide free and unbiased answers to consumers’ debt questions. If you’ve been harassed by a debt collector or debt buyer, save their messages and contact an experienced debtors’ rights attorney to discuss your situation and evaluate your options.

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In her article, Social Media and Intellectual Property Risks, Pria Chetty lists the top 5 intellectual property risks when using social media. The second risk, cybersquatting, refers to registering, selling, or using a domain name with bad faith intent to profit from someone else’s mark. Generally cybersquatters intend to profit from either the goodwill of another’s trademark or the sale of the domain to the trademark owner at an inflated price. The Anticybersquatting Consumer Protection Act (ACPA), enacted in 1999, provides for a civil cause of action for cybersquatting. Under the ACPA the plaintiff must show that the defendant acted with badfaith intent to profit, when heregistered, sold, or used a domain name that was identical or sufficiently similar to the plaintiff’s trademark.

the trademark or intellectual property rights of the defendant in the domain name;

the extent to which the domain name consists of the defendant’s name;

the defendant’s prior use of the domain name in connection with the bona fide offering of goods or services;

the defendant’s bona fide noncommercial or fair use of the mark in a site accessible under the domain name;

the defendant’s intent to divert consumers from the mark owner’s online location to a site accessible under the domain name, either for commercial gain or with an intent to tarnish or disparage the mark, by creating a likelihood of confusion as to the source, sponsorship, affiliation, or endorsement of the site;

the defendant’s offer to transfer or sell the domain name to the trademark owner or any third party for financial gain;

the defendant’s giving false contact information when applying for registration of the domain name;

the defendant’s registration or acquisition of multiple domain names that are identical to or confusingly similar to the trademarks of others; and

the extent to which the trademark incorporated in the defendant’s domain name registration is or is not distinctive.

In a cybersquatting case, courts may award monetary or injunctive relief. Under “exceptional circumstances,” courts may also award attorneys’ fees.

In People for the Ethical Treatment of Animals v. Doughney, 263 F.3d 359 (4th Cir. 2001), Michael Doughney registered the domain name peta.org and created “People Eating Tasty Animals” website. After People for the Ethical Treatment of Animals (PETA)’s requests to voluntarily transfer the domain name were denied, they sued Doughney, alleging trademark infringement, trademark dilution and cybersquatting. PETA argued that they owned the “PETA” mark, which they registered in 1992. Doughney argued that his website was a constitutionally-protected parody of PETA. The district court rejected Doughney’s parody defense and granted PETA’s motion for summary judgment, holding that there was a likelihood of confusion because one would have to actually go to the peta.org website to determine that it was not owned, controlled or sponsored by PETA. On appeal, the circuit court affirmed the district’s court ruling.

A few years later in Lamparello v. Falwell, 420 F.3d 309 (4th Cir. 2005), Reverend Jerry Falwell, a nationally known ultraconservative minister sued Christopher Lamparello after he created a website criticizing Falwell’s views under the domain name www.fallwell.com. On appeal, the court found that while Lamparello’s domain name closely resembled Falwell’s domain name www.falwell.com, “Lamparello clearly created his website intending only to provide a forum to criticize ideas, not to steal customers.” Furthermore, “no one seeking Reverend Falwell’s guidance would be misled by the domain name — www.fallwell.com — into believing Reverend Falwell authorized the content of that website.”

Victims of cybersquatting have several options before taking a cybersquatting matter to court. First victims can send a cease-and-desist letter to the cybersquatter. Second, victims can arbitrate under Internet Corporation for Assigned Names and Numbers (ICANN)’sUniform Domain Name Resolution Policy (UDRP). ICANN is a nonprofit organization that oversees the domain name registration system and provides for expedited domain name dispute resolution proceeding. Although UDRP proceeding can be faster and cheaper than an ACPA lawsuits, some parties prefer ACPA lawsuits because they offer more remedies than the cancellation or transfer of the domain name, which are the only remedies available under UDRP proceedings. Additionally, UDRP decisions can be challenged and overturned in ACPA suits. Third, victims of cybersquatting may also submit an InterNIC Complaint Form to initiate help from ICANN’s Support Services.

“Where an employee creates a Social Media account in the name of the company on for instance, Twitter and uses Twitter to communicate (tweet) information about the company, does the company or the employee own the account? Does the company or employee own the contacts (followers)? Most importantly, does the company, employee or Twitter own the content posted?”

“[I] think that a court would probably look at the same kinds of factors to determine ‘ownership’ that they would review in the bricks & mortar context. Those factors might include: was the employer’s e-mail address used to establish the account; was the account used primarily for the employer’s business; was tweeting part of the employee’s job responsibilities; did the employee access the account from the office or over the employer’s server; did the employer have a written policy regarding use of the internet by employees and was the use authorized by that policy; did the employer have a written policy concerning ownership of content created by employees in connection with the business?”

First a court will look to a pre-existing agreement bestowing ownership. In the absence of such an agreement, generally a court will examine the facts to determine whether the employee’s social media participation was sponsored or encouraged by the employer, and whether the employee used the employer’s resources to create or maintain the social media account. While it is likely that a court will find the employer owns any contacts or content created or utilized during or as a result of employment, in most cases employers can not claim to own contacts or content cultivated prior to employment.

However, employers and employees must stay updated as this relatively new area of law is constantly changing. Although the following example never went to court, it sets a precedent for others that are similarly situated.

When CNN fired their controversial radio host Rick Sanchez, many questioned whether he would also have to give up his 140,000 followers on Twitter. In his article, CNN’s Social Media Pioneer Gets Fired: What Happens to Rick Sanchez on Twitter? Marshall Kirkpatrick’s writes, “Does Sanchez own his Twitter account or does CNN? Ought he be required to remove the reference to CNN from his name?” Although Sanchez’s old Twitter account is still active, it has been taken over by someone else. He was able, however, to maintain his large Twitter following under a new account. Thus, in this case CNN lost the social media investment they made in Sanchez’s personal Twitter account, while Sanchez continued to benefit from the following that CNN helped him establish.

As social media continues to blur the lines between personal and professional relationships, determining ownership of contacts and content is likely to become even more difficult. Don’t wait for the law to catch up! The best way to protect your contacts and content is by updating or creating employment agreements to provide for these new technologies and relationships.

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To compete in today’s market, brands and businesses must have a social media presence. For some small brands and businesses, social media is the only affordable way to introduce their products/services to the masses. In contrast, mega brands and business that don’t use social media to engage their customers risk being overshadowed by more social media savvy competitors. However, all brands and businesses must be aware of the legal consequences to their social media actions.

In her article, Social Media and Intellectual Property Risks, Pria Chetty focuses on the legal risks as it relates to intellectual property rights of social media content. Specifically, she explains the top 5 intellectual property risks when using social media. In short, they are (1) ownership of social media accounts, (2) cybersquatting, (3) no back up of intellectual property, (4) unauthorized disclosure of trade secrets by employees and (5) brand damage.

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Despite all the reasons people have to protect their privacy online, many continue to post personal information, thereby making it easier for criminals to commit cyber crimes. This week Matt McKinney posted an excellent article entitled, Protecting Your Privacy in A Social Media World. He lists some of the personal information that Beth Givens, Executive Director of the Privacy Rights Clearinghouse, believes no one should ever post online. Specifically, social media users should NEVER POST their birth date, birthplace, vacation plans, home address and password clues. It is important to note that there are many other personal details that should never be posted online (i.e. any address, compromising pictures, risky behaviors, illegal activities, etc.). Additionally, Given’s exposes how cyber criminals exploit said information. For example, Givens advises social media users to avoid using easy to access information for password security questions, as it makes password hacking easier for cyber criminals. Finally McKinney provides a valuable quiz from the Identity Theft Resource Center which helps determine how susceptible you are to cyber crime.

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For many years, smart job seekers have known that prospective employers may consider Facebook, Twitter, YouTube or other social media accounts, when making hiring decisions. What many don’t know is that now some jobs require prospective employees to sign waivers or disclose passwords to prospective employers to use in their hiring process. According to Kevin Johnson’s article, Police Recruits Screened for Digital Dirt on Facebook, etc., “Some agencies are demanding that applicants provide private passwords, Internet pseudonyms, text messages and e-mail logs as part of an expanding vetting process for public safety jobs.” Although it is unclear how many agencies actually demand passwords, as per The International Association of Chiefs of Police’s (IACP) Survey on Law Enforcements Use of Social Media it is clear that 37% of the 728 participating law-enforcement agencies use social-networking tools for “vetting/background investigations” of potential employees.

Many privacy and free speech advocates feel these intrusions have gone too far. However, in Walter Pacheco’s article, Cop Recruiters Check Our Prospects’ Social Networking Habits, Captain Angelo Nieves of the Orange County Sheriff’s Office explains that their goal is to “balance the needs for privacy and simultaneously practice all due diligence in the background process to remove any candidate that is lacking in the quality or moral fiber we are in search of.” Later, Pacheco quotes Jim Pasco, Executive Director of the National Fraternal Order of Police: “Candidates do not check their rights at the station’s door,” Pasco said. “We need to develop a policy of best practices that reflects the need for information in hiring the best candidate and ensure their civil rights and privacy is not intruded on.” However candidates do, in fact, check some of their rights at the station’s door. Prospective public safety employees have restricted free speech and privacy rights simply because they are public employees. (This is not true for a private employee because when a private employer infringes on an employee’s rights to privacy or freedom of speech there is no government action. Rather private employees are protected by statutes, employment contracts or union regulations.)

In her article, Speech and the Public Employee, Lisa Baker clearly summarizes the 2-prong test developed by the Supreme Court to determine whether a public servant’s speech is protected by the First Amendment and, thus, protected from retaliatory action. First, the Court must decide “If the employee is deemed to be speaking as a citizen on matters of public concern–in other words, the threshold tests established under Connick, Roe, and Garcetti…” If that threshold is met, “the First Amendment will offer protection only if the interests of the employee in engaging in the expressive activity outweigh the substantial interests in maintaining efficiency of operations of a law enforcement.” Thus, the Court will only do the balancing test, if the public employee is speaking as a citizen on matters of public concern.

In an excellent article entitled, Facebook, Free Speech & Firing Words Cops’, Valerie Van Brocklin explains, “The public concern requirement is determined by looking at the content, form and context of the speech.” Furthermore, the Court in City of San Diego, California et al v. John Roe wrote, “[P]ublic concern is something that is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public at the time of publication.” Then in 2006, the Supreme Court in Garcetti v. Ceballos found that a public employee’s speech made pursuant to the employee’s official duties is not protected by the First Amendment, even when it is a matter of public concern. “We hold that when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Consequently, public employees’ First Amendment right to speak out on matters of public concern is limited merely by their public employee status. (Note: public employees may be protected by statute(s).)

Many public employees don’t consider this limitation when posting to social media sites like Facebook, Twitter, YouTube, etc. In Johnson’s article he gives two examples of potential police officers who have been disqualified because of their social media presence. In Massachusetts, a recruit’s text messages revealed past threats of suicide, resulting in his disqualification. In New Jersey, a candidate was disqualified for posting provocative photographs of himself in the company of numerous scantily clad women.

Although public employees, particularly police officers have been subject to extensive background checks as well as physical and mental evaluations for many years, social media has provided a new forum for potential employees to communicate as well as an informational goldmine where recruiters vet potential employees. While this seems unjust, it may be a necessary evil. Even if recruiters don’t check police officers’ social media accounts, defense attorneys will; and they will use that information to undercut officers’ credibility in court. In fact, the Fraternal Order of Police has announced that they will publish an opinion on this issue later this month.

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Last Wednesday, in a report to Congress, The Federal Trade Commission (FTC) published its most potent online privacy protection proposal yet. The proposal entitled, Protecting Consumer Privacy in an Era of Rapid Change, advocates stricter restrictions on online information collection or Web tracking, a Do Not Track browser setting, and greater transparency and consumer control of the information collected. According to the report, “[I]ndustry efforts to address privacy through self-regulation have been too slow, and up to now have failed to provide adequate and meaningful protection.” The FTC’s answer is a Do Not Track setting on consumers’ Web browsers.

Similar to the Do Not Call Registry, the Do Not Track setting would allow consumers to easily opt out of all Web tracking in one place. Currently, consumers have almost no say over who is tracking their information or what information is being tracked. While a minority of companies offer an opt-out option, doing so is often confusing and complicated. Thus, the Do Not Track proposal simplifies the process.

It is important to note that the “Do Not Track” could apply to all Web tracking, including behavioral advertising and services, such as Google Analytics, which builds a profile of individuals’ online activity. While the FTC has called for voluntary cooperation with its proposal, if trackers ignore said proposal, the FTC will likely ask Congress to pass legislation. The FTC is soliciting public comment on the proposal until January 31, 2011. To file a public comment electronically, please click here and follow the instructions.

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Every day social media impacts the law in a new way. Yesterday Law Professor Peter S. Vogel wrote an article entitled, The Law is Coming to Social Media’s Wild West, that focuses on how social media impacts privacy rights and issues specifically. He writes, “In this column, I will provide more about privacy protection, or lack thereof, coming from the courts and regulatory bodies in the U.S. and a number of EU countries — and note what may be on the horizon for the future.” Although it is too soon to tell how social media will ultimately influence privacy rights, Vogel provides an astute overview of today’s privacy concerns and where the law is right now. Please read his article to learn more on this topic.

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